Mind the Gap: The COIN Hangover & DoD’s New Policy to Protect Civilians on the Battlefield
The Department of Defense (DoD) recently released a bold new policy, a DoD Instruction titled “Civilian Harm Mitigation and Response,” that aims to reduce civilian harm on “battlefield next.” This “scalable” policy, issued in December 2023, codifies best practices within the U.S. armed forces and standardizes them across the military services. While the United States has the most lethal and ethical fighting force in history, the policy acknowledges past battlefield failures. In doing so, it seeks to give renewed vigor to the wholesome adage—and one of my favorite sentiments—that “you don’t have to be sick to get better.” It also builds on international efforts to reach agreement on reducing harm to civilians.
Great Promise
The first rule on the battlefield is to kill only lawful targets. As readers of Articles of War know, the laws of war prohibit making civilians and civilian structures the object of attack. When attacking military targets, that same law requires commanders to weigh the potential civilian harm (typically referred to as “collateral damage”). The United States’ legal and moral obligation is to minimize civilian harm if possible while at the same time defeating a lethal foe.
The law of armed conflict establishes a proportionality test that prohibits anticipated civilian harm that would be excessive to the expected military advantage of destroying the target. It is a subjective test based on the facts as the commander knows them at the time of the decision. The clearest expression of this customary law is contained in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions.
The DoD’s new policy will—if carefully implemented—advance the United States’ efforts to make these decisions with greater fidelity to the spirit of the law and the facts on the ground. But the policy is not without risks. In particular, three cautions weigh heavy.
First, all stakeholders must recognize and persistently remind the world that the policy does not—by its own language—create new law. It is policy only. It does not in any way alter current legal obligations on the battlefield. Neither does it create binding customary international law.
Second, leaders must assiduously avoid the very real risk that the policy will produce or perpetuate timidity, hesitancy, and worst of all for the soldier or commander, a culture of restraint and second-guessing on the battlefield. I have written about this “gap” and beat this drum in public remarks for a number of years because I have witnessed the impact of this self-imposed culture on warfighting.
Third, the oft-repeated phrase “those bastards at division” looms large over implementation. Whether it’s a staff officer at the brigade level looking up at higher headquarters or a senior leader at the corps level looking down at subordinate headquarters, there is tension. Humans tend to think they’re correct, especially when they believe they are “closer” to the problem, have better information, and yes, are “smarter” than others around them. No matter the “common cause” or the professionalism of the players, these natural sentiments exist at all echelons. I’ve seen it. New players on the staff—like civilian harm mitigation (CHM) teams—will now be part of this tension between echelons, especially if connected to higher echelons by separate reporting chains.
The most effective way to avoid these dangerous, culture-driven dangers is to recognize they can happen and train against them.
I served as a practicing Army judge advocate for 34 years, including four combat deployments where I advised commanders at all echelons on the use of armed force. These included peacekeeping operations, armed conflict, and nation-building, the latter often mired in insurgency and pervasive terrorism. During these operations, the protection of civilians was always foremost in the minds of commanders.
And, of course, U.S. armed forces have been the most engaged over the last 35 years around the world, beginning with Desert Shield/Desert Storm. The current plan is, therefore, well informed by American tactical and strategic experiences, from best practices in mitigation before a strike to best practices in response to strikes with civilian casualties.
The policy is particularly well informed by the U.S. military’s experiences when things have gone horribly wrong. It is axiomatic that one seems to learn more—sadly, to be sure—from mistakes than from successes. This is no less true on the battlefield.
Indulge me in a war story.
Mogadishu, Somalia. 1993. Somali militants ambushed and overwhelmed an engineer convoy. Concerned the battle captain was not providing fire support, the exceptional brigade commander circling overhead in his Blackhawk landed at our operations center, entering with the wind at his back. As he walked in, the radio crackled with “Grenade!” The convoy commander’s voice pierced the air. Everyone froze. No sound followed. A dud. The brigade commander immediately ordered the circling Blackhawks to fire, but before the staff could relay the order, I interrupted.
“But, Sir—”
The commander looked intently at me, and without missing a beat, said, “Fire warning shots into the wall.” The Somali crowd—belligerents and civilians—scattered, and the convoy returned to base safely. No civilian casualties. No U.S. casualties. A forgotten episode of classic American battlefield restraint.
But not so with mistakes. One need only remember the terrible strike on the Kunduz hospital in Afghanistan in 2015 to recognize that even the best armies in the world can and do make mistakes in the heat and confusion of combat, even in the digital age. In the moment, humans and machines will sometimes fail the test. This event led to an extraordinary process of institutional reflection within the DoD—study and policy revision—and accountability over the course of two years. And the learning and reflection continued in the intervening years.
I hope the rich yield from experience and reflection informs the new DoD policy. It codifies much of what the U.S. military has learned, including what it already does well and what it should do better, and importantly, standardizes these practices across the force.
There is goodness in all of this. Any effort to “get better” at protecting civilians is assuredly a good thing.
No New Law
However, stakeholders also must remember DoD’s Civilian Harm Mitigation and Response policy does not change international law or the law of armed conflict rules relating to civilian harm. It does not change the laws that commanders must follow when attacking military targets or assessing their value against the civilian harm that might result. It does not, as some might argue in the future, create legally binding customary international law.
The DoD’s efforts are, of course, not an “island.” The new policy is the outgrowth of the DoD’s endorsement of the Dublin Declaration of 2022. This declaration, signed by 85 countries, encourages but does not legally obligate, signatories to implement policies and protocols to help reduce harm to civilians during conflict, with a special emphasis on explosive weapons in cities. The Dublin Declaration creates no new law. Noble in purpose, it strives to remind all law-abiding nations of their obligations under the existing law of armed conflict.
The inevitable rising tide of expectations, however, will likely misperceive, misunderstand, or mischaracterize the intent of either (or both) the DoD Instruction or the Dublin Declaration. Aspirations often become expectations, especially when the holders of those expectations couple their views with the tendency to simplify and “shorthand” official actions. The real danger exists that writers, policymakers, and worse, warfighters, will assume the DoD is setting a new legal standard. Having personally dealt with critics over the years, it is not a stretch to hear them “in the distance,” already clamoring over how the United States has established a new binding standard in warfighting which, over time, will create legally accountable outcomes.
Quite the contrary. The DoD Instruction, at its core, is a set of warfighting policies, resources, procedures, and practices that allow U.S. forces to improve the pursuit of their moral imperative to minimize civilian harm. Whether engaged in lengthy, deliberate targeting processes or split-second dynamic targeting on a confused battlefield, precision counterterrorism (CT) strikes or large-scale existential warfighting, at its core, the DoD Instruction emphasizes how to maintain a focus on reducing civilian harm. And nothing more. Indeed, I can imagine in some intense warfighting that none of the resources or procedures will be in play. This is what the policy’s authors mean by “scalability.”
Imagine an aggressive assault on a U.S. position from the edge of a town by a peer enemy. U.S. forces, simply to survive, will return fire into buildings occupied by the enemy on the edge of town to blunt the assault. U.S. forces may or may not know if civilians still occupy some of the buildings, and hesitation may mean capture, death, and defeat. In such a dynamic, existential setting, however unpleasant to imagine, the new policies must give way to the lex specialis which controls; that is, the law of war, which allows the targeting of enemy forces using civilian structures for cover. The proportionality analysis may be brief and will almost certainly lack the level of informational detail U.S. forces are accustomed to having in modern counterterrorism/counterinsurgency fighting. The preferred processes contemplated by the new DoD Instruction may simply be unworkable or irrelevant in such a setting.
We must understand, therefore, that instead of creating new legal standards, the Instruction establishes a set of resources and practices to help reduce harm, and how best to react to harm if it occurs.
Mind the Gap
My second caution is that commanders must continue to “shake” the hangover of counterinsurgency (COIN) and counterterrorism (CT). To do that, they must first stop drinking, so to speak. Let me explain.
In 2021, I co-wrote an article about the U.S. military’s COIN “hangover.” Thirty-plus years of habit-forming peacekeeping/CT/COIN “warfighting” created habits of restraint, the result of highly precise and constraining rules of engagement (ROE). While these wholesome ROE were absolutely necessary for their strategic policy environment, they nonetheless produced habits of restraint in commanders, dubbed the “COIN hangover.”
Here’s but one profile of such a hangover. In 2020, I spoke with six senior infantry commanders who had just completed a large-scale combat training event. They described one training firefight where they received mortar and artillery fire from an enemy-fortified city. The commanders explained they did not return fire. When asked why they didn’t return fire they first described their posture as one of self-defense and, second, admitted that although they believed they had the authority to return fire, they “double-checked with higher headquarters” for approval. This should alarm everyone.
The U.S. military must understand the profound impact of 30 years of peacekeeping, COIN, and CT on the mental model now often resident in the U.S. military’s culture, in many senior commanders, and reflected in this conversation.
These commanders held a mindset hobbled by notions of self-defense, restraint, and self-doubt.
More pointedly, in peer-to-peer existential warfighting, armies don’t operate under a self-defense paradigm. When in combat with a declared hostile force, soldiers who are not manifesting an intent to surrender and are not hors de combat may be targeted with lethal force once positively identified. The law of armed conflict affords combatants the privilege and obligation to kill other combatants. On sight. No matter what the enemy is doing, be it eating, sleeping, or digging a trench. Armed or unarmed. Self-defense does not enter the picture.
Yet because of years of highly constrained employment of force, predicated primarily on notions of self-defense, commanders have been hobbled into hesitation, or have a tendency to “look over their shoulder,” doubt their authority, and be uneasy over whether higher command will endorse their decisions. The result of these inclinations is often to push the issue “higher.” Unsurprisingly, “calling higher” became habit-forming.
The Army continues vigorously to train commanders to avoid such mental pitfalls, but habits are hard to break as reflected in more recent articles on the persistence of the hangover.
Echelon Distrust
My third and final caution. Warfighting headquarters train incessantly prior to deployment to gain staff cohesion and trust. Like any team, knowing your teammates through difficult and challenging experiences builds trust and confidence in each other. In modern warfighting, most warfighters on a staff understand the function of each member. This is because they have grown up with the different players and learned their function on an operational staff. As an Army lawyer beginning at the brigade echelon in Mogadishu, Somalia, my fellow captains weren’t quite sure what I brought to the fight; that is, until I showed them. Over time, as a more senior officer, my responsibilities would change, but our warfighting staffs learned and grew to trust the function and purpose of a judge advocate on a battle staff. Judge advocates are now trusted key players on any battle staff, at all echelons. It has taken decades to achieve this level of trust, both within the team and up and down the echelons.
When leaders insert a new function —like a new staff member who has a new role—they must anticipate tension and some measure of distrust. They must anticipate an “outsider” complex and concerns about whether the new member of the team is truly “on” the team, or observing on behalf of another team (i.e., “those bastards at Division”). Trust and confidence in CHM staff members wherever they are positioned will be critical to the success of this program. If leaders choose to ignore the realities of human dynamics, the program is doomed to fail. Take it from a former “outsider”: teams must build trust over time, both individually and corporately.
The “So What?”
So, what does all this have to do with the new DoD Instruction on civilian harm mitigation and response?
Under the new policy, U.S. commanders may now have to absorb a new warfighting policy that encourages more preparation, more processes, more systems to check, more oversight cells to provide advice and overwatch for how U.S. forces engage targets on the battlefield. This means more players on the staff with new functions and perhaps separate reporting chains.
All of this can be a good thing. But if commanders are still trying to shake a COIN hangover of cultural restraint, senior leaders must be especially careful if their new policy on civilian harm reduction reinforces a culture of restraint and hesitation that tells commanders “We’re watching you.” As laudable as the new policy is, implementers must guard against its use in ways that prolong the COIN hangover. Any policy or structure focused on civilian harm that’s overlaid on a military ingrained with habits of restraint has the potential to exacerbate dangers to the force on “battlefield next,” especially during large-scale combat. The policy may, in fact, make the hangover harder to shake.
And leaders must never underestimate the subtle, unspoken “downward” pressure on subordinates when “higher” creates processes and expectations or inserts new staff functions focused on the protection of civilians. There is a corresponding chilling effect on subordinates, both in their initiative and in the risks they’re willing to take.
In warfighting, commanders must never forget that risk is their business. To tinker with this delicate balance is to invite danger. Ignoring this potential to chill subordinates ignores common sense and experience.
Conclusion
Commanders can avoid all these dangers. Like any good rehab experience, doing so starts with admitting weaknesses; in this case, natural human inclinations. Leaders can’t simply waive these challenges away. They have to plan for them.
As leaders implement this important new policy, they must do five things starting now. First, they must be conscious of and acknowledge—deliberately and overtly— this hangover danger. Second, they must take bold and aggressive measures to avoid the hangover culture of unnecessary restraint and doubt through specific, rigorous, and relentless training regimens. Third, they must consciously guard against lower-echelon distrust of higher-echelon oversight. Fourth, they must generate confidence in the mastery of the rules of war by both commanders and uniformed lawyers, thereby avoiding the voluminous opinions and commentaries that “sound” like law. Finally, they must ensure superior headquarters and the new CHM superstructure become trusted teammates who empower their commanders with confidence.
The good news is that leaders can do all this through thoughtful, careful, deliberate policy implementation and training. Hiring the right kind of CHM staff is the first and perhaps most important step. Then, over time, implementing forces must train, train, and train, with special emphasis on emboldening commanders to leverage the full employment of force on the battlefield and win, all within the boundaries of the law of war and with a confident understanding of its outer limits.
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Lieutenant General (LTG) Charles Pede, U.S. Army, Retired served as the 40th Judge Advocate General of the U.S. Army and currently teaches national security law at George Washington University Law School and public policy at Gettysburg College.
Photo credit: U.S. Army, Pfc. Sar Paw
